Summary: Mill
worker appealed decision of Department of Labor Hearing Examiner that
he was not suffering from an occupational disease. Hearing Examiner found
conclusions of medical panel entitled to a presumption of correctness
and that the analysis of physicians finding him not suffering from an
occupational disease was the better analysis.

Held: The WCC
affirmed the DOL decision. The WCC found the medical panel failed to follow
statutory provisions by failing to meet as a whole to make a final determination,
but found that error both harmless and not properly considered on appeal
when not raised below. The WCC declined to find the presumption in favor
of the panel report unconstitutional. Finally, the WCC found the decision
below not clearly erroneous and supported by substantial evidence. [Note:
the WCC decision was reversed by the Supreme Court in William
Polk v. Planet Insurance Co., 287
Mont. 79, 951 P.2d 1015 (1997), on the ground that physicians rendering
an opinion on occupational disease causation misunderstood the appropriate
standard.]

This is an appeal from a
finding by the Department of Labor and Industry (Department) that appellant,
William Polk (claimant), is not suffering from an occupational disease.

Procedural Background

Claimant alleges he is suffering
from a totally disabling lung disease caused by his exposure to dust
and oil while employed at a mill which manufactures flour and vegetable
oil from rape, flax and mustard seeds. The mill is owned by Koch Agriculture,
Inc. (Koch).

In December 1993 the claimant
advised his employer that he had a respiratory infection or disease
and wished to file a claim for compensation under the Occupational Disease
Act (ODA). (DLI File.(1)) On December
7, 1993, Koch filled out an Employer's First Report, which it forwarded
to the adjuster for its workers' compensation insurer. (Id.)
In that report Koch questioned the claim and specifically noted that
claimant was a chain-smoker. (Id.)

On January 6, 1994, claimant
filled out, signed and submitted a formal Claim for Compensation. He
wrote that he was suffering from a lung infection caused by the dust
he had inhaled at work.

On January 7, 1994, following
receipt of the Employer's First Report but prior to receiving the claim
itself, the adjuster for Koch's insurer wrote to claimant and requested
that he submit a formal written claim for compensation and an authorization
for release of medical records. (Id.) The letter also notified
claimant that the insurer was "formally denying your claim for occupational
disease benefits so that the panel evaluation will be scheduled by the
Employment Relations Division [of the Department of Labor and Industry]."
(Id.)

Thereafter, the Department
invoked the medical panel procedures specified in section 39-72-602,
MCA. Initially, it designated Dr. David Anderson to examine claimant.
(Id.) Dr. Anderson examined claimant on February 17, 1994.
On February 24, 1994, he reported that claimant was suffering from "severe
obstructive airway disease with reversible airway obstruction consistent
with asthma as well as emphysema and possible pulmonary fibrosis." (Ex.
6 at 280.) Dr. Anderson wrote that "[a]lthough some of . . . [claimant's]
obstructive airway disease is likely related to his history of smoking
1½ packs a day of cigarettes for 20 years, I believe the asthmatic component
is more likely related to his exposure to toxic organic dusts that he
was exposed to [at work]." (Id.)

Based on Dr. Anderson's
report, on March 15, 1994, the Department issued an Order Referring
Copy of Medical Reports to Parties. The Order determined that claimant
was suffering from an occupational disease.

Based on the attached
report of the first examining physician, the Department concludes
the claimant is suffering from SEVERE OBSTRUCTIVE AIRWAY DISEASE WITH
REVERSIBLE AIRWAY OBSTRUCTION CONSISTENT WITH ASTHMA AS WELL AS EMPHYSEMA
& POSSIBLE PULMONARY FIBROSIS which in fact arose out of and was
contracted from their [sic] employment.

(DLI File; capitalization
in original.) It further notified the parties of their right to a second
panel examination pursuant to section 39-72-602, MCA. (Id.)

The insurer thereafter requested
a second examination and on April 12, 1994, the Department designated
Dr. Michael Sadaj to conduct the examination. (Id.) On June
10, 1994, Dr. Sadaj reported:

In my opinion, Mr. Polk
has chronic obstructive pulmonary disease and chronic respiratory
insufficiency as a result of long term heavy smoking. In my opinion,
he has no occupational lung disease.

(Ex. B at 1.)

On June 20, 1994, the Department
designated Dr. Thomas Thigpen the chair of the medical panel and sent
him copies of the reports of both Drs. Anderson and Sadaj. (DLI File.)
In its cover letter to Dr. Thigpen, it instructed him

to review the information
provided and contact the first and second examining physicians to
arrive at a consensus regarding claimant's problems and the relationship
of those problems to their [sic] employment, without seeing the claimant.

(Id.) The letter
requested Dr. Thigpen to submit a written report.

On September 6, 1994, Dr.
Thigpen submitted his written report. (Ex. C.) He concluded that claimant
was not suffering from an occupational disease, rather he was suffering
from emphysema attributable to his cigarette smoking. (Id.)

On October 5, 1994, the
Department issued another Order Referring Copy of Medical Panel Reports
to Parties. (DLI File.) This time the Department determined that the
claim for occupational disease benefits should be denied. It notified
the parties that if they disagreed with that determination they could
request a hearing. On October 20, 1994, the claimant, through his attorney,
filed a request for hearing. (Id.)

A hearing was held in Great
Falls, Montana, on October 19 and 20, 1995. Claimant testified on his
own behalf. Drs. Holly Strong, Dana Headapohl, David Anderson, Jeffrey
Kessler and Stephen Demeter all testified concerning claimant's medical
condition. Dr. Robert K. Merchant was not present at the hearing but
his testimony was presented through his deposition. Margot Hart and
Bruce Carmichael, who are certified rehabilitation counselors, testified
concerning claimant's employability. Finally, Gordon Mattern, the plant
manager of Koch, testified concerning conditions at the plant.

The hearing officer issued
his Findings of Fact; Conclusions of Law; and Final Order on March 1,
1996. He found that the law favors the final panel determination and
that claimant had "not provided sufficient medical information to overcome
the presumption in favor of the panel." (Findings at 8.) He further
concluded:

Additionally the analysis
and conclusion reached by the group of doctors who agree with the
panel is found to be the better analysis. The doctors in this group
are more highly qualified in pulmonary medicine and their analysis
of the medical records including both radiologic and physiologic records
is found more credible.

(Id.) He affirmed
the Department's decision denying the claim. This appeal followed.

Record on Appeal

The record on appeal consists
of the Department's file, the exhibits admitted at hearing, the deposition
of Dr. Merchant, and a partial transcript of the hearing. The parties
stipulated to the portions of the transcript which are included in the
appeal. (Stipulation filed March 29, 1996.) Those portions include the
transcribed testimony of Drs. Dana Headapohl, David Anderson, Jeffrey
Kessler, and Stephen Demeter, the claimant, Gordon Mattern, Margot Hart,
and Bruce Carmichael.

Medical Terms

The alleged occupational
disease involves the claimant's respiratory system. To assist the reader
in understanding the medical testimony and reports referenced in this
decision, I provide the following explanations of key medical terms
used in this decision.

Trachea: "The cartilaginous
and membranous tube descending from the larynx and branching into the
right and left main bronchi." Dorland's Illustrated Medical Dictionary
1738 (27th ed. 1988).

Bronchus (bronchi, pl.):
"One of the two large tubes, branches of the trachea or windpipe,
which conduct air to and from the lungs or one of their principal branches.
The bronchi begin at the lower end of the windpipe, and end in the substance
of the lungs where they divide into smaller branches." Schmidt's Attorneys'
Dictionary of Medicine, Vol. 1, B-141-42 (1990).

Bronchiole (bronchioles,
pl.): "One of the finer subdivisions of the branched bronchial
tree, differing from the bronchi in having no cartilage plates and having
cuboidal epithelial cells." Dorland's Illustrated Medical Dictionary
236 (27th ed. 1988).

Alveolus (alveoli, pl.):
"One of the tiny air sacs of the lungs, formed by a dilatation at the
end of a bronchiole (more precisely, an alveolar duct). The bronchioles
are the slenderest of the many tubes which carry air into and out of
the lungs. Through the thin walls of the alveoli or air sacs, the blood
takes in oxygen and gives up its carbon dioxide in the process of respiration."
Schmidt's Attorneys' Dictionary of Medicine, Vol. 1, A-158 (1990).

Chronic Obstructive
Pulmonary Disease (COPD): A "[g]eneralized airways obstruction,
particularly of small airways, associated with varying combinations
of chronic bronchitis, asthma and emphysema. The term COPD was
introduced because these conditions often coexist, and it may be difficult
in an individual case to decide which is the major one producing the
obstruction." The Merck Manual , § 4, ch. 36, p.636 (15th ed. 1987).
Dr. Anderson characterized "obstructive lung disease" as:

anything that causes airway
obstruction, such as chronic bronchitis associated with smoking, bronchial
asthma, and eventually will lead to a kind of chronic dilatation of
the air spaces which we term 'emphysema'.

(Tr. at 52.) Dr. Merchant
described the condition as "reduced airflows in the lungs . . . sort
of like...breath[ing] through a small straw." (Merchant Dep. at 13.)

Chronic bronchitis:
A "long-continued form of inflammation of one or more bronchi,, often
with a more or less marked tendency to recurrence after stages of quiescence.
It is due to repeated attacks of acute bronchitis or to chronic general
diseases; characterized by attacks of coughing, by expectoration, either
scanty or profuse, and by secondary changes in the lung tissue." Dorland's
Illustrated Medical Dictionary 237 (27th ed. 1988). Dr. Merchant described
chronic bronchitis as a "condition where you have a lot of inflammation
chronically in the airways and continually they have a lot of sputum
production on a daily basis." (Merchant Dep. at 13.) He testified that
chronic bronchitis is most frequently due to tobacco use but can be
due to other things. (Id.)

Asthma: A "condition
marked by recurrent attacks of paroxysmal dyspnea [difficult or labored
breathing], with wheezing due to spasmodic contraction of the bronchi."
Dorland's Illustrated Medical Dictionary 158 (27th ed. 1988). Dr. Anderson
testified that a diagnosis of occupational asthma requires
a history of exposure to an occupational irritant. (Tr. at 53.) Dr.
Stephen Demeter simplified the definition of asthma as "a disorder characterized
by an increased response by the airways to irritants." (Id.
at 134.) Grain dust and mold associated with the milling of seeds can
act as an irritant. (Id. at 135.)

Emphysema: A "condition
of the lung characterized by increase beyond normal in the size of air
spaces distal to the terminal bronchioles, either from dilatation of
the alveoli, or from destruction of their walls." Dorland's Illustrated
Medical Dictionary 547 (27th ed. 1988). Dr. Anderson concurred with
the National Heart, Lung and Blood Institute's definition of emphysema
as "a condition of the lung characterized by abnormal prominent enlargement
of the air spaces distal to the terminal bronchials and accompanied
by the destruction of their walls and without obvious fibrosis." (Tr.
at 57.) Dr. Merchant explained that emphysema is a condition where large
portions of lung tissue may be destroyed, which in turn may cause the
airways to collapse. (Merchant Dep. at 13.) He testified that emphysema
can cause an appearance of increased interstitial markings. (Id.
at 19, 26.) Interstitial refers to the spaces in lung tissue, Dorland's
Illustrated Medical Dictionary 546-47 (27th ed. 1988), for example the
spaces between alveoli.

Restrictive lung disease:
A "ventilation disorder of the lungs (insufficient exchange of gases)
due to a reduction in the volume of the lung tissue or a disorder of
the chest wall, pleura, or diaphragm." Schmidt's Attorneys' Dictionary
of Medicine, Vol. 3, R-83 (1990). Dr. Dana Headapohl contrasted the
condition to obstructive lung disease, as follows:

Obstructive lung disease
is any process that decreases the flow of air into or out of the lungs.
This would include things like asthma, bronchospasm, those kinds of
things. Restrictive disease, on the other hand, involves essentially
the restriction of lung movement; so the lung, which is normally very
elastic and compliant becomes fibrotic [characterized by scar tissue]
and is unable to work as a bellows well.

(Tr. at 13.) She testified
that interstitial lung disease involves fibrosis of lung tissue in the
spaces between the alveoli and is a form of restrictive lung disease.
(Id. at 48, 52.) In discussing the three conditions she said:

Obstructive lung disease
refers to anything that causes airway obstruction, such as chronic
bronchitis associated with smoking, bronchial asthma, and eventually
will lead to a kind of chronic dilatation of the air spaces which
we term 'emphysema'. Interstitial lung disease refers to a process
that usually starts as an acute inflammation involving the alveoli,
leading to inflammation within the interstitial spaces and eventually
fibrosis and leads to more of what we call ventilation profusion mismatch
(?) than strictly an obstructive disease. That's why one sees a drop
in oxygen saturation with exercise. Restrictive lung disease can be
due to pulmonary fibrosis, but it could also be due to anything that
restricts the movement of the chest, such as somebody has severe arthritis
and has had compression fractures.

(Id. at 52; (?)
in original transcript.)

Hypersensitivity pneumonitis:
A restrictive lung disease. (Id. at 49.) It is "[a]diffuse interstitial granulomatous lung disease caused by an allergic
response after inhalation of one of a variety of organic dusts or, less
commonly, simple chemicals." The Merck Manual, § 4, ch. 43, p.
687 (15th ed. 1987). Granulomatous means "composed of granulomas."
A granuloma is "(1) any small nodular delimited aggregation
of mononuclear inflammatory cells, or (2) such a collection of modified
macrophages resembling epithelial cells" and is "a chronic inflammatory
response initiated by various infectious and noninfectious agents."
Dorland's Illustrated Medical Dictionary 716 (27th ed. 1988). Dr. Merchant
defined this disease as "an unusual condition that's actually an allergic
reaction deep in the airways. And it's a different allergic reaction
than you get with asthma or hay fever, and it actually causes what's
called 'granulomatous inflammation' in the air sacs." (Merchant Dep.
at 17.) The condition can be caused by a variety of exposures, including
grain dust and molds of the type that claimant was exposed to in the
workplace. (Tr. at 13.)

Hypersensitivity pneumonitis
may be either acute or chronic.

In the acute phase, there
is irritation, inflammation, there may be accumu-lation of fluid in
the small airways and in the alveoli . . . . [I]t's not uncommon to
have fever, chills, shortness of breath, which in many cases resolves
within a week or two, if you take a person away from the exposure.
On x-ray, the x-ray may be normal or it can also show some patchy
infiltrates; and these are generally seen in the lower lungs.

If the person
continues to be exposed to the same offending agent, you can have overlapping
courses; so you can have acute changes where the person might have resolved
the problem, but then there's another exposure, so you have a more chronic
picture developing. In the chronic form, what happens is that the lung
tissue which has been inflamed and irritated scars and becomes fibrotic,
which is just another term for scarring. And in this phase, the fibrotic
changes are often times seen in the upper lung.

(Dr. Headapohl; Tr. at 12.)
Dr. Merchant explained that the chronic form of the disease may be difficult
to diagnose but "radiographically you see scar tissue development." (Merchant
Dep. at 18.)

Bronchiectasis: A
"chronic dilatation of the bronchi marked by fetid breath and paroxysmal
coughing, with the expectoration of mucopurulent matter. It may affect
the tube uniformly, or occur in irregular pockets, or the dilated tubes
may have terminal bulbous enlargements." Dorland's Illustrated Medical
Dictionary 236 (27th ed. 1988). Dr. Merchant described it as "a condition
where you actually have destruction not of the air sacs that you have
in emphysema, but of the peripheral airways. And these airways get very
dilated up, . . . the major problem is that you can't clear out secretions
out of them." (Merchant Dep. at 35.) Dr. Merchant explained that there
are various causes of bronchiectasis, for example, a severe pneumonia,
particularly one that is not treated promptly. (Id. at 35.) Dr.
Anderson described bronchiectasis as "kind of a chronic dilatation of
the air space" often associated with "excessive mucus production." (Tr.
at 57.) He identified aspergillosis, a fungus commonly found in grain
dust, as one possible causative agent. (Tr. at 58, 61.)

Facts

1. Claimant's employment history
and occupational exposure.

Claimant is 51 years old.
After graduating from high school, he spent eight years in the United
States Air Force. For ten years thereafter he worked for the Great Falls
Gas Company as a meter reader and a laborer. He then worked at Holman
Aviation as a janitor for three years. Finally, he worked for Evans Grain
& Elevator Company and its successor company, Koch Agriculture, Inc.,
from 1985 until November 1993. It was during his employment with Koch
that claimant allegedly contracted an occupational lung disease. (Tr.
at 257-59.)

Koch processes rape, flax
and mustard seeds into flour and vegetable oil. During his employment
with Koch, claimant sacked flour in 100-pound bags and cleaned machinery.
He was regularly exposed to dust and oil mist. In addition, he was exposed
to moldy grain. In 1992 he began wearing a mask at work to reduce his
inhalation of dust and mist. (Tr. at 266-71, 281-82.)

2. Onset of respiratory troubles.

Prior to 1991, claimant's
only history of respiratory problems was a bout with a respiratory infection
and pneumonia in 1976. However, he was heavy a smoker. Between 1962 and
1993, inclusive, he smoked one and one-half packs of cigarettes a day.
(Tr. at 267.) Since 1993 he has smoked only intermittently, and now limits
his smoking to four cigarettes a day at most.

In April 1991 claimant experienced
fever, chills, and diarrhea for approximately ten days. (Tr. at 285.)
Thereafter, in February of 1992, he was admitted to Columbus Hospital
in Great Falls with primary complaints of fever, chills, and diarrhea,
symptoms which were similar to those he had experienced the previous April.
(Ex. 5 at 147.) He also had a "slight cough." (Id.) The admitting
physician noted in his history that "the patient had an almost identical
illness approximately 9 months ago." (Id.) A chest x-ray disclosed
"reticular nodular infiltrate in both lung fields which was faint." (Id.
at 146.) Dr. Addison, who treated claimant during this hospitalization,
diagnosed claimant as suffering from infectious diarrhea, dehydration
and reticular nodular infiltrate of the lungs. (Id.)

In July 1993 the claimant
sought medical care at the Great Falls Immediate Care Center for respiratory
and cold-like symptoms, including a cough with productive green phlegm,
fever, and nasal congestion. (Ex. G at 1.) The examining physician diagnosed
"[b]acterial respiratory upper infection." (Id.)

Thereafter, the claimant continued
to experience periodic coughing and congestion. (Id. at 2.) In
October he experienced an "increasing cough." (Id. at 3.) On
October 12, 1993, he again sought medical care. (Id.) At that
time he was diagnosed as having bronchitis and "[p]robable early chronic
obstructive pulmonary disease." (Id.) The treating physician
prescribed medication, rest and fluids, and encouraged claimant to stop
smoking. (Id.)

On November 9, 1993, claimant
was hospitalized at the Columbus Hospital with fever, cough, shortness
of breath, hypoxia,(2) and respiratory
distress. (Ex. 5 at 141.) His blood oxygen saturation level at the time
of admission was 87%. (Id.) According to Dr. Strong, a saturation
level of less than 90% warrants the use of supplemental oxygen . (Tr.
at 75.)

Dr. Holly Strong, who specializes
in pulmonary and critical care, treated claimant during his November 1993
hospitalization. She concluded that claimant suffers from hypersensitivity
pneumonitis, occupational asthma, bronchiectasis, and emphysema. (Tr.
at 74-77.) She indicated that the various conditions were the result of
a combination of claimant's inhalation of grain dust and smoking. (Ex.
6 at 292.)

Following claimant's November
1993 hospitalization, Dr. Strong concluded that claimant should not return
to his job at Koch. (Id.) Claimant has not worked since then
and continues to experience shortness of breath, becoming winded even
with light activity. (Tr. at 291, 294.)

3. The medical evidence.

This case involves conflicting
expert medical opinions. Of the doctors testifying at hearing and by deposition,
Drs. Strong, Anderson, and Headapohl opined that claimant's lung condition
is occupationally related, while Drs. Merchant and Demeter concluded that
his condition is not occupationally related. Dr. Kessler was also unable
to relate claimant's lung condition to occupational factors. Three other
doctors who examined claimant, but who did not testify, provided written
opinions that claimant does not suffer from an occupational disease. Finally,
Dr. Patterson, who did a biopsy of lung tissue, found "minimal alveolar
fibrosis of undetermined etiology" and "inflammatory infiltrate" of the
bronchus which he characterized as "suggestive of possibly a hypersensitivity."
(Ex. D at 1.)

Dr. Holly Strong

Dr. Holly Strong practices
pulmonary medicine. She received her M.D. degree from the University of
Guadalajara and completed residencies in internal medicine (three years),
pulmonary medicine (two years), and critical care (one year). (Tr. 71.)
At the time of hearing, she had been practicing pulmonary and critical
care medicine for three years, was board certified in internal medicine,
and was board eligible but not certified in pulmonary medicine. (Id.
71, 79.)

Dr. Strong treated claimant
during his November 1993 hospitalization and has been his treating physician
since that time. In her opinion claimant is suffering from (1) hypersensitivity
pneumonitis; (2) bronchiectasis, which she characterized as "a type of
chronic bronchitis, which is much more severe"; (3) a small element of
emphysema; and (4) asthma. (Id. at 74-76.) She testified that
the hypersensitivity pneumonitis is related to claimant's exposure to
grain dust while working at the Koch mill. (Id. at 74.) She said
the bronchiectasis could have been caused by prior pneumonia, early hypersensitivity
pneumonitis, or some sort of syndrome:(3)
she was unable to specifically attribute any of it to occupational factors.
(Id. at 75, 80.) She attributed claimant's emphysema to smoking.
(Id. at 75.) Finally, she attributed claimant's asthma to his
exposure to organic grain dust. (Id. at 77.)

Dr. Strong noted that hypersensitivity
pneumonitis is often called "farmers' lung" because of its incidence among
persons who "work in grains, granaries and millers." (Id.) She
said that organisms occurring in grain are thought to cause the condition,
however, not all persons working with grain or exposed to the organisms
contract the disease. (Id.) According to Dr. Strong, smokers
appear to be more susceptible to the disease. (Id. at 77, 82.)

According to Dr. Strong, claimant's
most debilitating symptom is hypoxia, which is a lack of sufficient oxygen
in his blood.(4) (Id. at 75.)
Because his blood is insufficiently oxygenated, "[h]e is unable to walk
across a room without getting very short of breath." (Id.) After
brief exercise claimant's oxygen saturation drops to between 70% and 80%.
(Id.) Dr. Strong noted that claimant "cannot walk across a room
without probably needing more oxygen -- supplemental oxygen." (Id.
at 76.) Claimant obviously cannot return to his work at the mill, however,
Dr. Strong indicated that he could work in a sedentary position. (Id.
at 80.)

Dr. Strong attributed claimant's
hypoxia primarily to hypersensitivity pneumonitis. (Id. at 75.)
She agreed that emphysema can cause desaturation of blood oxygen (id.
at 81) but felt that claimant's emphysema was neither advanced nor severe
(id. at 75, 83). Her opinion concerning the "small" degree of
emphysema (id. at 75) was based on a high-resolution CT scan
performed on June 20, 1995 (id. at 82-83, 89), which she interpreted
as "rather diagnostic of hypersensitivity pneumonitis" and as showing
"a small amount of emphysema" (id. at 83). She indicated, however,
that a radiologist is more qualified than she is to read and interpret
the CT scan. (Id. at 82-83.)

Dr. David Anderson

Dr. David Anderson is a member
of the occupational disease panel designated by the Department pursuant
to section 39-72-601, MCA. He completed a residency in internal medicine
and a fellowship in pulmonary diseases at the Mayo Clinic. (Tr. at 42.)
He has practiced medicine in the State of Montana since 1979. (Id.)
He is board certified in internal medicine but not in pulmonary medicine.(5)
(Id. at 43.) Approximately 80% of his outpatient practice involves
the treatment of pulmonary diseases and a "good percentage" of his hospital
practice involves critical care of patients suffering from pulmonary diseases
or conditions. (Id.) In the course of his practice he often treats
people who work in the grain industry. (Id.)

Dr. Anderson performed an
occupational disease evaluation of claimant in February 1994. He reported
his findings to the Department in a letter of February 24, 1994:

My impression is that William
does have severe obstructive airway disease with reversible airway obstruction
consistent with asthma as well as emphysema and possible pulmonary fibrosis.
To me it appears that this came on when he was working for the Montana
Vegetable Oil Company probably as a result of exposure to toxic organic
dust in his work that involved unloading grain and often having to clean
out the inside of grain bins, shoveling grain into an auger. He also
assisted other people in welding during his employment and this might
have also have been a contributing factor to his lung disease.

Although some of his obstructive
airway disease is likely related to his history of smoking 1½ packs
a day of cigarettes for 20 years, I believe the asthmatic component
is more likely related to his exposure to toxic organic dusts that he
was exposed to.

(Ex. 6 at 280.)

Dr. Anderson testified at
the hearing that claimant suffers from asthmatic bronchitis, emphysema,
and hypersensitivity pneumonitis. (Tr. at 58.) In his opinion the asthma
and the hypersensitivity pneumonitis were caused by claimant's exposure
to grain dust and mold at the Koch mill. (Id. at 58-59). He explained
the role of mold found in grain and grain dust.

People can become hypersensitized
to the mold, and they can develop several things. They can develop asthma
from exposure to the same, they can develop a syndrome that's called
toxic organic dust syndrome; or they can develop a syndrome that's called
hypersensitivity pneumonitis, where they actually develop what looks
like pneumonia on chest x-ray, but is actually a hypersensitivity reaction
to the pneumonia. So they can develop several different syndromes associated
with that exposures [sic] to mold, especially mold that's growing with
grain.

(Id. at 45.)

Dr. Anderson testified that
claimant's history of smoking contributed to his asthma (id.
at 58-59) and apportioned claimant's overall disability at 60% to occupational
factors and 40% to smoking and other factors. (Id. at 59.) He
apportioned the hypersensitivity pneumonitis at 100% to occupational factors.
(Id.)

Dr. Anderson's diagnosis of
asthma was based on claimant's response to bronchodilators(6)
during pulmonary function testing. (Id. at 53-54.) After administration
of bronchodilators claimant's lung function tests increased significantly.
(Id.) Dr. Anderson said that the increase was diagnostic for
asthma. (Id.)

Dr. Anderson identified several
facts supporting his diagnosis of hypersensitivity pneumonitis. First,
claimant's blood oxygen saturation did not remarkably improve with the
administration of bronchodilators. (Id. at 53-54.) Significant
improvement would be expected if claimant's hypoxia was primarily due
to asthma. (Id.) Thus, the lack of significant improvement suggested
another cause for the hypoxia. Second, claimant's defusion capacity, which
"measures the disappearance of carbon monoxide from air that you breathe,"
was significantly reduced, indicating the possible "presence of interstitial
lung disease or the presence of emphysema." (Id. at 54.) Third,
an enhanced CT scan of the lungs, taken June 29, 1995, revealed (1) "some
evidence of emphysema, but not a very severe emphysema"; (2) evidence
of interstitial lung disease or fibrosis "predominantly in the upper lobes
and . . . kind of towards the periphery of the lung"; and (3) "evidence
of bronchiectases in the lower lobes."(7)
(Id. at 56-57.) In Dr. Anderson's opinion, the degree of emphysema
identified by the scan was insufficient to explain claimant's hypoxia.
(Id. at 57, 67.)

Dr. Anderson concluded that
the primary condition disabling claimant is "pulmonary fibrosis related
to the hypersensitivity pneumonia." (Id. at 59.) He pointed out
that asthma is treatable and that if asthma were claimant's only problem
he could still perform a number of other occupations. (Id.) Considering
claimant's overall condition, Dr. Anderson concluded that he is still
capable of performing a "desk job." (Id. at 64.)

Dr. J. Michael Sadaj

Dr. J. Michael Sadaj practices
internal and pulmonary medicine. (Ex. B at 10.) After receiving his medical
degree from the University of Nebraska Medical Center, he was a resident
in internal medicine for three years and a fellow in pulmonary disease
for two years. (Id.) He has been in private practice in Butte,
Montana, since 1979 and, in addition to his private practice, served as
the Medical Director for the Department of Respiratory Care Services at
St. James Community Hospital in Butte from 1979 to 1990. (Id.)
He has been a member of the occupational disease panel since 1987. It
does not appear that the doctor is board certified in any specialty.(8)

At the request of the Department,
Dr. Sadaj performed the second panel evaluation on May 5, 1994. (Ex. B
at 1.) Based on his examination and review of claimant's spirometry results
with regard to the claimant's pulmonary functions, he concluded that claimant
has "chronic obstructive pulmonary disease and chronic respiratory insufficiency
as a result of long term heavy smoking." (Id. at 1.) He wrote,
"The only way that I could say the occupation was a major part of his
problem was if he has evidence of hypersensitivity pneumonitis." (Id.)
He ordered a hypersensitivity pneumonitis blood panel to ascertain if
claimant had been exposed to antigens known to cause the condition. The
results of that assay were negative. (Id. at 8.) (Apparently,
Dr. Headapohl was referring to the results from this test when she testified
that the presence or absence of antibodies does not prove or disprove
that a particular antigen is the agent responsible for hypersensitivity
pneumonitis.) In his report to the Department he concluded, "In my opinion,
he [claimant] has no occupational lung disease." (Id. at 1.)

Dr. Thomas Thigpen

On September 6, 1994, Dr.
Thomas Thigpen reviewed claimant's medical records and the reports of
Drs. Sadaj and Anderson. (Ex. C at 1.) He talked to Dr. Sadaj but not
to Dr. Anderson. His failure to speak with Dr. Anderson, who supported
claimant's occupational disease claim, is unexplained. In any event, he
concluded that claimant did not suffer from an occupational disease. (Id.)
In his written report to the Department, which is the sole document we
have from him, he wrote:

I believe this patient has
emphysema which is attributable to his cigarette smoking. The patient's
records that I have been provided show a gradual onset of symptomatology
over a number of years and his symptoms seem to be more consistent with
the presentation of emphysema and chronic bronchitis than the more intermittent
types of problems that I would think was a hypersensitivity type reaction
related to his work (or some other type of asthmatic reaction). I am
not aware of the medical records that point towards intermittent type
medical attention over the years that would support a diagnosis of asthma.
It is important to note that he has had negative hypersensitivity testing
done also. This certainly does not exclude his problem being a hypersensitivity
problem but less that [sic] likelihood, I would think.

. . . .

It should be noted Dr. Anderson
and Dr. Sadaj had diverging opinions in regards to this case, but it
is my opinion from reviewing the information at hand that the problem
is more consistent with lung disease related to cigarette smoking than
any type of occupational disease process. I think there is no question
that if one does have any type of underlying lung disease (and that
includes emphysema and chronic bronchitis) that exposure to various
types of dust and other irritants will aggravate this condition. Again,
in this particular case, however, I do believe there is not enough positive
information to support a diagnosis of a work related lung disorder.

(Id. at 1-2.)

Dr. Thigpen did not testify
and his curriculum vitae was not supplied to the hearing officer. I therefore
have no information concerning his education, any board certifications,
or his expertise in the diagnosis and treatment of hypersensitivity pneumonitis.

Dr. Bruce Patterson

Dr. Bruce Patterson, a pathologist,
performed a bronchoscopic biopsy on claimant's left lower lung on January
24, 1995. (Ex. D at 1.) In his written report he commented as follows:

Clinical information received
with this case indicates that the patient has severe chronic obstructive
pulmonary disease with a history of grain dust exposure and rapidly
progressive disease. I see no evidence of interstitial pneumonitis.
There is focal very minimal alveolar fibrosis of undetermined etiology.
The most striking features in this biopsy material are in the bronchus
which exhibits a chronic inflammatory infiltrate with eosinophilia.
The eosinophils are suggestive of possibly a hypersensitivity.

(Ex. D at 1, emphasis added)

Dr. Patterson did not testify.
Information concerning his medical education, certifications, and experience
was not supplied to the hearing officer.

Dr. Walker Smith

On January 26, 1995, Dr. Walker
Smith, another pathologist, reviewed Dr. Patterson's biopsy slides and
report, and stated: "I see no evidence of a pure or predominantly interstitial
process and I see no direct evidence for an occupational lung disease
including hypersensitivity disease associated with grain dust exposure."
(Ex. E at 1.) He diagnosed claimant with acute and chronic bronchitis.
(Id. at 2.)

Dr. Smith did not testify.
Information concerning his medical education, certifications, and experience
was not supplied to the hearing officer.

Dr. Jeffrey Kessler

Dr. Jeffrey Kessler is a diagnostic
radiologist specializing in imaging for diagnostic purposes. (Tr. at 85.)
He received his medical degree from the Medical College of Wisconsin and
completed an internship and diagnostic radiology residency at St. Joseph's
Hospital in Milwaukee. (Id.) Thereafter, he completed a fellowship
in body imaging at the University of Colorado in Denver. (Id.)
He did not indicate whether he is board certified in radiology.

Dr. Kessler performed a high-resolution
CT scan of claimant's lungs on June 20, 1995. (Id. at 89.) Upon
reviewing the CT images, Dr. Kessler noted "a lot of prominent markings
on the periphery of the lung; linear, kind of reticular branching structures
on the periphery of the lung which aren't supposed to be there." (Id.
at 90.) He went on to say, "What we're looking at here are thickened interstitial
structures surrounding the bronchial and the vascular structures out on
the periphery of the lung." (Id.) He said that the thickened
interstitial spaces "suggest that there is some scarring or fibrosis in
those areas." (Id.) He noted that the "bronchial walls are also
thickened" and that the thickened walls could be due to bronchitis. (Id.)
He also found clear evidence of severe bronchiectasis in the lower lobes
of the lungs (id. at 93-94) and evidence of mild emphysema (id.
at 92, 99).

With regard to the interstitial
markings, Dr. Kessler said that they are consistent with mild interstitial
lung disease. (Ex. 2 at 13; Tr. at 91, 98.) He testified they are "suspicious
for hypersensitivity pneumonitis" but said "[y]ou can't make a definite
diagnosis on the film." (Tr. at 90, 97.) He also indicated that interstitial
lung disease has a number of different causes. (Tr. at 91, 96.)

Dr. Dana Headapohl

Dr. Dana Headapohl specializes
in occupational and environmental medicine. (Tr. at 3.) She has a master's
degree in public health from the Medical College of Wisconsin and a master's
degree in environmental engineering from Stanford University. (Id.
at 4.) She received her medical degree from the University of Washington
and completed a residency in occupational medicine at the University of
California in San Francisco (UCSF). (Id.) She is an assistant
clinical professor in occupational medicine at UCSF and is a professor
at the Department of Pharmacy at the University of Montana. (Id.
at 4-5.) She is board certified in preventive and occupational medicine.
(Id. at 4.) She is a designated member of the occupational disease
panel. (Id. at 5.)

Dr. Headapohl examined claimant
on March 6, 1995, at the request of his attorney. (Ex. 6 at 202.) At the
time of her examination she concluded that claimant had COPD and asthma.
(Id. at 208.) She related the COPD to smoking and the asthma
to his occupation. (Id.)

At trial Dr. Headapohl testified
that a pulmonary function test administered at the time of her examination
was consistent with "mixed obstructive and restrictive disease." (Tr.
at 14.) At the time of the examination she did not make a positive diagnosis
of hypersensitivity pneumonitis, however, upon her review of the radiology
report of the high-density CT scan done on July 29, 1995, she did make
that diagnosis. (Id. at 15, 21-22, 33.) She testified, "The fact
that he had fibrotic changes in the upper lungs I found to be quite significant
because both the tissue changes and the location were where one would
expect them to be with the chronic form of hypersensitivity pneumonitis."
(Id. at 15) She also noted that the reticular nodular infiltrates
noted in claimant's 1992 hospital records (ex. 3 at 20) was consistent
with an acute stage of hypersensitivity pneumonitis. (Tr. at
40.) In her opinion claimant's hospitalizations in 1992 and 1993 "were
most likely acute phases [of hypersensitivity pneumonitis]." (Id.
at 34-35.)

Dr. Headapohl attributed the
hypersensitivity pneumonitis to claimant's exposure to mold and organic
dust while working at Koch. (Id. at 17.) Her opinion was based
on claimant's exposure to antigens (proteins) known to be causative agents
in hypersensitivity pneumonitis and known to be present in molds and fungus
occurring in grain. (Id. at 11, 37.) She also based her opinion
on the absence of any history of exposure to causative agents in other
settings. (Id. at 17.) Referring to claimant's negative test
results for known antigens, she said that the presence or absence of antibodies
does not either prove or disprove that a particular antigen is responsible
for the condition. (Id. at 30.) She testified that results of
a lung biopsy done on January 24, 1995, did not rule out the presence
of hypersensitivity pneumonitis. (Id. at 36-37.)

Dr. Headapohl testified that
claimant suffers from COPD involving occupational asthma, emphysema and
bronchiectasis. She attributed his asthma to occupational factors based
upon his occupational exposure and the fact that it first occurred during
his adulthood. (Id. at 18, 23.) She said that asthma occurring
for the first time during adulthood is typically due to a "sensitizing
agent." (Id. at 23.) She conceded that smoking can exacerbate
the asthma and attributed the emphysema to smoking. (Id. at 26,
30.) She testified that the bronchiectasis may be attributable to chronic
asthma, emphysema, or chronic bronchitis. (Id. at 15, 30.) Overall,
she attributed 90% of claimant's COPD to his occupational asthma and 10%
to his smoking and emphysema. (Ex. 6 at 209; Tr. at 31.)

Finally, it was her opinion
that despite his respiratory impairment the claimant can perform sedentary
work. (Tr. at 40.)

Dr. Robert Merchant

Dr. Robert Merchant is a pulmonary
critical care physician. He attended medical school at New York Medical
College. He completed an internal medicine residency and a pulmonary fellowship
at University of Iowa Hospitals and Clinics. (Merchant Dep. at 40.) After
finishing his fellowship, he was on the faculty at University of Iowa
Hospitals and Clinics. (Id.) While there he worked in the occupational
medicine clinic, as well as in the pulmonary clinic. He performed research
concerning lung diseases, including interstitial lung diseases, silicosis,
and related conditions. (Id.) He is board certified in internal
medicine, pulmonary medicine, and critical care medicine. (Id. at
41)

Dr. Merchant examined claimant
on February 23, 1995, at the request of claimant's attorney. (Ex. A at
1.) He took a history and reviewed clinical and toxilogical records, including
the 1994 pulmonary function test, a chest x-ray taken January 24, 1995,
the pathology slides from the transbronchial biopsy, and the high-density
CT scan taken on June 20, 1995. (Id.; Tr. 19, 32.)

Dr. Merchant reviewed claimant's
biopsy reports and concluded that they "are certainly not particularly
suggestive of hypersensitivity pneumonitis, although they clearly do not
exclude it." (Ex. A at 4). He explained that the biopsy samples may not
be "completely representative of what's going on." (Merchant Dep.
at 33.) Thus, "a small area of pulmonary fibrosis or interstitial fibrosis
is, generally speaking, ignored when reviewing biopsies, at least people
who are experienced in looking at interstitial lung disease specimens.
(Id. at 55.) He agreed "that the findings from Drs. Walker and
Patterson included no general diffuse interstitial process, no granulomas,
and no direct evidence of occupational lung disease." (Id. at
23.)

Dr. Merchant personally reviewed
claimant's high-resolution CT scan and did not see "significant interstitial
changes" consistent with hypersensitivity pneumonitis. (Id.at 34.) He testified that he has special expertise in reading high-resolution
CT scans of the lung:

CAT scans, high-resolution
CAT scans, like I said, are relatively new. The interpretation of them
is tricky. You need a fair amount of experience looking at them, and
you also need a fair understanding of what's going on in the lung tissues.
And while I'm not a certified radiologist, I probably have had
more experience looking at high-resolution CAT scans than any radiologist
in the state, especially with respect to interstitial lung disease.
That was part of our research program at Iowa, was using high-resolution
CAT scans to that end. In addition, the radiologists are not certified
in pulmonary medicine, which is an important area to be able to interpret
the scans.

(Id. at 56-57, emphasis
added.)

In reviewing the CT scan,
Dr. Merchant did see evidence of emphysema and bronchiectasis. (Merchant
Dep. Ex. at 12-13.) He testified that the causes of bronchiectasis
include certain immunodeficiencies, tuberculosis, and anything causing
extensive inflammation in the air sacs, such as severe pneumonia. (Merchant
Dep. at 35-36.) He identified ammonia as the only occupational exposure
that has been causally linked to bronchiectasis. (Id. at 37.)

Dr. Merchant characterized
claimant's chief complaint as shortness of breath or "dyspnea."(9)
He diagnosed claimant's primary problem as COPD. (Ex. A at 4; Merchant
Dep. at 14.) He identified chronic and untreatable asthma, chronic bronchitis,
and emphysema as conditions encompassed within COPD but opined that emphysema
was the major component of claimant's COPD. (Ex. A at 4; Merchant Dep.
at 12-14.) He attributed claimant's emphysema to smoking but acknowledged
that dusts at claimant's work site "...undoubtedly would act as irritants
and cause exacerbation of his underlying emphysema and make it very difficult
for him to work in a dusty work environment." (Ex. A at 4.)

Dr. Stephen Demeter is board
certified in internal medicine, pulmonary medicine and occupational medicine.
(Tr. at 103; Ex. F at 3.) After attending medical school at Ohio State
University, he completed a three year internship and residency in internal
medicine at Mount Carmel Medical Center and a two year fellowship at the
Cleveland Clinic Foundation in pulmonary diseases. (Ex. F at 1.) He has
a master's degree in public health. (Id.) He has been a reviewer
for four medical periodicals and the associate editor of two medical journals.
(Id. at 2.) Currently, he is a professor of internal medicine
and head of the pulmonary medicine section at Northeastern Ohio Universities
College of Medicine, the chief of occupational medicine at Akron General
Medical Center, and a member of the boards of directors of the International
Registry of Toxic Inhalation and the American Academy of Disability Evaluating
Physicians. He has authored and coauthored over 60 articles and abstracts.
(Id. at 11-16.) He was the editor of a textbook entitled Environmental
Respiratory Disease. (Tr. at 103.) He has treated patients with hypersensitivity
pneumonitis. (Id. at 124, 131.)

At the request of the insurer,
Dr. Demeter reviewed claimant's radiologic films, including the CT scan,
laboratory reports, several depositions,(10)
medical records maintained by Drs. Strong, Anderson, Sadaj, Patterson,
Smith, Thigpen, and Merchant, the records of the Immediate Care Center,
the records of Columbus Hospital, including the records of claimant's
1976 and 1992 hospitalizations, and the list of substances to which claimant
was exposed when working at Koch.(11)
(Id. at 106-08.) Before arriving at his opinions, he also did
a medical literature search and considered the medical articles he identified
in the search. (Id. at 124.)

Dr. Demeter testified that
claimant suffers from emphysema caused by cigarette smoking. (Id.
at 110.) He said that the presence of emphysema may be evidenced
by up to nine specific findings on chest x-ray. (Id. at 111.)
In claimant's case, Dr. Demeter identified five of those findings and
testified that "there's no question in my mind that he had emphysema on
a chest x-ray." (Id. at 112.) He disagreed with
the doctors who characterized claimant's emphysema as "mild." (Id.
at 113.) He testified that the medical findings show that claimant's COPD,
consisting of emphysema and chronic bronchitis, is "very severe COPD."
(Id. at 115.)

Based on x-rays, the CT scan
and physiological changes, Dr. Demeter also diagnosed claimant with bronchiectasis.
(Id. at 119-20.) He testified that there was evidence that the
bronchiectasis existed in 1976. (Id. at 121, 153.) He was unable
to say to what degree the condition contributed to claimant's symptoms,
pointing out that "it's generally 20 to 30 years after a person develops
bronchiectasis that they start developing their symptomatic problems with
it." (Id. at 121.) He could not determine "how much of the physiological
changes [experienced by claimant] are caused by bronchiectasis and how
much are caused by the COPD, or a combination thereof." (Id.)
He opined that the bronchiectasis is probably due to infection, not occupational
factors. (Id. at 120.)

In arriving at his opinions
concerning the bronchiectasis, Dr. Demeter relied in part on a search
of medical literature. (Id. at 119-20.) That search disclosed
congenital factors and infection as the predominant causes of the condition
and failed to disclose any substantial support for an occupational cause
of the condition. (Id. at 120.)

Dr. Demeter reviewed the CT
scan and found no evidence of interstitial infiltrates in the upper lobes
of claimant's lungs. (Id. at 119.) Similarly, he saw no evidence
of interstitial changes on other x-rays taken of claimant. (Id.)

Dr. Demeter disagreed with
the physicians who diagnosed asthma and hypersensitivity pneumonitis.
He testified, "I find no evidence at the present time to believe that
this individual has any occupationally induced lung diseases." (Tr. 123-24,
131-32.)

In addition to the CT scan
and x-rays, Dr. Demeter reviewed other tests that might be indicative
of hypersensitivity pneumonitis. He reviewed the pulmonary function tests
but did not find them to be diagnostic of hypersensitivity pneumonitis.
(Id. at 123-25.) He testified that the results of the blood panel
administered by Dr. Sadaj did not support the diagnosis. He noted that
80-90% of persons suffering from acute hypersensitivity pneumonitis test
positive on the panel, although those percentages begin to drop three
years after an acute episode.(12) (Id.
at 125.)

He also found no support for
acute hypersensitivity pneumonitis in his review of claimant's hospitalizations.
(Id. at 126.) He noted that in 1992 the claimant had green phlegm
and in 1993 he had yellow phlegm. (Id.) He testified that phlegm
is infrequently seen in acute hypersensitivity pneumonitis, and when seen
it is not colored. He also noted that there was no evidence of rales (abnormal
breath sounds), which are expected in acute hypersensitivity pneumonitis,
and no x-ray evidence of interstitial infiltrates in the lower lobes of
the lung, which are also expected. (Id.) Claimant's levels of
eosinophils(13) also did not support a
diagnosis of hypersensitivity pneumonitis. Dr. Demeter summarized:

So he didn't have radiographic
findings, he didn't have physical findings, and every time that he had
a febrile illness, he had a cough and phlegm; and those certainly are
not findings we would expect with hypersensitivity pneumonitis.

At another point in his testimony,
Dr. Demeter reiterated that claimant's history was inconsistent with the
typical history of either acute or chronic hypersensitivity pneumonitis:

that I do not believe he
had hypersensitivity pneumonitis for a variety of reasons, but one of
those was that his history was inconsistent. I further defined that
in terms of acute system you would expect to see acute symptoms shortly
after the onset of exposures, which certainly is not the case here.
Secondly, with respect to chronic hypersensitivity pneumonitis, while
this is generally a diagnosis that lies dormant for a period of time
then slowly creeps up on you, there were other features that were inconsistent
with that diagnosis, including the lack of the weight loss, the loss
of appetite, radiographic abnormalities, etc.

(Id. at 142, underlining
indicates unintelligible portions.) He again summarized the case against
the diagnosis:

He [claimant] only has one
or two of the symptoms associated with either the acute or the chronic
phase [of hypersensitivity pneumonitis]. But he doesn't have the bulk
of the symptoms, nor the physiological changes, nor does he have the
radiographic changes. But certainly from a statistical standpoint, he
could be that one person out of a thousand.

(Id. at 150.)

Dr. Demeter was asked to explain
the claimant's fever, chills, and shortness of breath, if not due to hypersensitivity
pneumonitis. He replied:

Well, in terms of the fever,
the phlegm, the shortness of breath, those are all manifestations that
you find in people with either COPD or have bronchiectasis. It is not
at all unusual to have recurrent infections and acute bronchitis in
either one of those two groups. And I find no problems whatsoever explaining
either one of those -- or those symptoms based upon either one of those
disease processes. In terms of the weight loss, again, this is a manifestation
of chronic hypersensitivity pneumonitis, not the acute form. I didn't
find much evidence for this. Now, certainly there was a weight loss
problem. Looking at his weights, though, in November of 1993 he started
at 164 lbs. Later that month he was 179, and basically his weight continued
to increase between 180 and 200 lbs between December of 1993 and January
of 1995. If he had chronic hypersensitivity pneumonitis, I would have
expected his weight to continue to drop. Number two, he was hospitalized
in [sic] February 28 of 1992 with acute ? He had had a problem prior
to that time, 10 months prior to that time, which would have put it,
what, about April of 1991; and it was indicated at that time that he
lost 34 lbs and had regained 9 lbs of it, and his weight at that time,
in 1992, was 164 lbs. So I would have, it's my opinion that his weight
loss was a problem caused by the diarrheal illnesses, and these were
documented in his hospitalization at that time.

(Id. at 131.) He pointed
out that emphysema and bronchiectasis fully explained claimant's symptoms
"without having to look for alternative or exotic diagnoses." (Id.
at 157.) He attributed "all the radiographic and physiological changes,
as well as the signs and symptoms" suffered by claimant to "[e]mphysema
and chronic bronchitis, which is COPD, and bronchiectasis." (Id.
at 159.)

The Decision Below

The hearing officer's Findings
of Fact; Conclusions of Law; and Order summarily resolve the conflicting
medical testimony. That resolution is set forth in conclusions of law
3, 4 and 5, which are in essence findings of fact rather than conclusions
of law. Those paragraphs read:

3. The panel physician report
from Drs. Anderson, Sadaj, and Tigpen [sic] concluded the Claimant is
not suffering from an occupational disease. The medical information offered
at hearing included analysis from several additional physicians. Dr. Demeter,
who has studied, practiced, and written extensively on pulmonary diseases,
concluded the Claimant does not suffer from hypersensitivity pneumonosis.
Dr. Demeter agreed that some of the Claimant's symptoms are indicators
found in patients suffering from hypersensitivity pneumonosis. Because,
however, only a few of the Claimant's symptoms would support such a finding
and the normal constellation of other symptoms were not found, Dr. Demeter
concluded the Claimant does not suffer from hypersensitivity pneumonosis.
This conclusion is also supported, according to Dr. Demeter, by not only
statistics which identify hypersensitivity pneumonosis as a very rare
disease but also by radiologic and physiologic records he examined.

4. Drs. Strong, Headapohl,
and Anderson concluded the Claimant is suffering from an occupational
disease. This conclusion was based in large part upon the finding that
the Claimant's condition includes hypersensitivity pneumonosis. These
doctors also concluded the Claimant suffers from occupational asthma and
emphysema. In reaching this diagnosis, the doctors' analysis is reasonable
and supported by the many factors which they identified. Their conclusion,
however, seems to disregard or not appropriately balance other elements
identified by the panel doctors Tigpen [sic] and Sadaj, as well as the
analysis and supporting factors identified by Dr. Demeter and Dr. Merchant
which do not support an occupational disease finding in the Claimant's
case.

5. The record in this case
involves a denial of occupational disease benefits by the Occupational
Disease Panel. Examination and analysis of the Claimant's condition as
well as the cause of that condition by numerous doctors resulted in one
group of doctors concluding the Claimant suffers from an occupational
disease and another group of doctors concluding the Claimant does not
suffer from an occupational disease. The law favors the panel determination.
In this case the claimant has not provided sufficient medical information
to overcome the presumption in favor of the panel. Additionally the analysis
and conclusion reached by the group of doctors who agree with the panel
is found to be the better analysis. The doctors in this group are more
highly qualified in pulmonary medicine and their analysis of the medical
records including both radiologic and physiologic records is found more
credible.

The hearing officer further
found that the claimant failed to establish that he is totally disabled.

Standard of Review

Section 39-72-612(2), MCA
(1993), provides for a direct appeal to the Workers' Compensation Court
from the Department's final order in an occupational disease case. The
section provides:

The judge may overrule the
department only on the basis that the department's determination is:

(a) in violation of constitutional
or statutory provisions;

(b) in excess of the statutory
authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error
of law;

(e) clearly erroneous in
view of the reliable, probative, and substantial evidence on the whole
record; or

(f) arbitrary or capricious
or characterized by abuse of discretion or clearly unwarranted exercise
of discretion.

Under the clearly erroneous
standard of subparagraph (e), the hearing officer's findings of fact must
be overturned on judicial review where they are "clearly erroneous in
view of the reliable, probative, and substantial evidence on the whole
record." State Compensation Mutual Insurance Fund v. Lee Rost Logging,
252 Mont. 286, 289, 827 P.2d 85 (1992) (quoting section 2-4-704(2)(a)(v),
MCA). The standard of review for conclusions of law is whether the Department's
interpretation of the law is correct. Steer, Inc. v. Department of
Revenue, 245 Mont. 470, 474-75, 803 P.2d 601 (1990).

Issues on Appeal

On appeal the petitioner raises
numerous issues. I summarize and restate those issues as follows:

1. Did the medical panel
procedure in this case comply with statutory provisions? If not, was
such non-compliance prejudicial to the petitioner?

2. Did the medical panel
procedure and the presumption of correctness afforded to the panel's
report violate the petitioner's constitutional rights to substantive
due process, procedural due process, and/or equal protection?

3. Were the hearing officer's
findings that claimant does not suffer from an occupational disease
and is not totally disabled clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole record?

Discussion

1. Petitioner's Arguments Concerning
Medical Panel Statute.

Claimant's first argument
concerns the medical panel provisions. He argues that the 1993 version
of those provisions should have been, but were not, followed by the Department.
The insurer contends that the 1995 version applied.

In EBI/Orion Group v.
Blythe, 54 St.Rptr. 54, 55 (January 7, 1997), the Supreme Court held
that a provision in the Workers' Compensation Act for an independent medical
examination is procedural in nature, thus the version of the statute in
effect at the time of the trial was controlling. Blythe arguably
requires the application of the 1995 version of the medical panel provisions
since the hearing in this case was held after the effective date of the
1995 amendments. However, the decision must be read in the specific context
of that case. The IME in Blythe was ordered by this Court shortly
before trial. In this case the medical panel examinations were ordered
by the Department pursuant to its statutory powers. Under this circumstance,
the law in effect at the time of the Department's Order governs. Thus,
the medical panel procedures set out by the 1993 version of the ODA apply.

The panel procedures specified
in 1993 are in most respects identical to those specified by the 1995
act. The 1993 ODA, as does the 1995 ODA, provides for the evaluation of
the claimant by an independent medical panel. § 39-72-601 and -602, MCA
(1993, 1995). The examination must be conducted by one or more physicians
designated from a "list of physicians" compiled by the Department. (Id.)
Section 39-72-601(1), MCA (1993, 1995). A designated physician "must be
certified by his specialty board or be eligible for certification in the
specialty area appropriate to the claimant's condition . . . ." (Id.)
The final panel report is presumptively correct. § 39-72-610, MCA (1993,
1995).

The controversy over the panel
procedure arises as the result of differences in the 1993 and 1995 statutes
concerning the final panel report when two examinations are requested.
Both the 1993 and 1995 acts require appointment of a third panel member
whenever a second examination is requested and done. § 39-72-702, MCA.
However, the two acts differ with respect to the manner in which the final
report is to issue. Section 39-72-702(2)(b), MCA (1993), requires submission
of the first two reports to a three-member panel consisting of the two
examining physicians and one other physician. The section then provides
that the "three panel members" shall issue a final report. In 1995, however,
the legislature amended section 39-72-702(2)(b), MCA (1995), to provided
in relevant part:

The reports from the two
examining physicians must be sent by the department to the presiding
officer of the panel. The presiding officer shall issue a report concerning
the claimant's physical condition and whether the claimant is suffering
from an occupational disease.

In this case Dr. Thigpen issued
the final report without consulting with Dr. Sadaj. Claimant construes
the 1993 Act as requiring Dr. Thigpen to consult with both of the examining
physicians, thus he argues that his failure to do so violated the 1993
provision

Claimant's argument has merit.
Under the 1993 statute, section 39-72-602(2)(b), MCA (1993), required
the three panel members, not merely the chair of the panel, to issue the
final report. Moreover, the Department was required to base it's final
Order on the "report of the three members of the medical panel." § 39-72-602(c),
MCA (1993). The panel as a whole was required to make
the final determination. Thus, the procedure followed by Dr. Thigpen in
this case did not comport with the statute. While the report reflected
the determination of a majority of the panel, it is possible that Dr.
Anderson, if consulted, would have persuaded Dr. Thigpen and/or Dr. Sadaj
that his opinion was the better one.

The error, however, is of
no aid to the claimant. He did not raise the issue in the proceeding below
and, as a general rule, courts will not consider issues raised for the
first time on appeal. Bengala v. Conservative Sav. Bank, 250
Mont. 101, 108, 818 P.2d 371, 375 (1991). Moreover, section 2-4-702(1)(b),
MCA, expressly precludes consideration of issues raised for the first
time on judicial review, providing:

A party who proceeds before
an agency under the terms of a particular statute may not be precluded
from questioning the validity of that statute on judicial review, but
the party may not raise any other question not raised before the agency
unless it is shown to the satisfaction of the court that there was good
cause for failure to raise the question before the agency.
[Emphasis added.]

Claimant argues, however,
that he had no realistic opportunity to raise the issue in the proceeding
below because he did not have notice that the medical panel report by
Dr. Thigpen would be afforded a presumption of correctness. Claimant also
argues that the insurer never gave notice that it intended to rely on
the panel report or the panel presumption.

Claimant's contentions are
disingenuous. The presumption regarding the medical panel report is found
at section 39-72-610, MCA (1993):

Report of and examinations
conducted by medical panel. (1) At a hearing held before
the department or the workers' compensation judge, there is a rebuttable
presumption that the report of the medical panel and any medical examination
reports by members of the medical panel are correct.

(2) The claimant or the
insurer may present additional medical information in order to rebut
the medical examination report of a panel member or a panel report.
[Emphasis added.]

This statute was in effect
in 1993 and unchanged by the 1995 legislature. It provided clear warning
to claimant and his counsel that the panel report issued by Dr. Thigpen
would be considered by the hearing officer and afforded a presumption
of correctness. Indeed the hearing was triggered by the Department's adoption
of the report and claimant's objection to it. The report was listed among
the respondent's list of proposed exhibits and admitted into evidence
as Exhibit C.

Moreover, the error was harmless.
In his final decision the hearing officer indicated that irrespective
of the presumption, the evidence preponderated against a finding of occupational
disease. After stating that the presumption of correctness of the panel
report had not been overcome, the hearing officer went on to say:

Additionally the analysis
and conclusion reached by the group of doctors who agree with the panel
is found to be the better analysis. The doctors in this group are more
highly qualified in pulmonary medicine and their analysis of the medical
records including both radiologic and physiologic records is found more
credible.

(Findings of Fact; Conclusions
of Law; and Final Order at 8.) Thus, he would have reached the same result
regardless of the final panel report.

The error was also harmless
because the presumption did nothing more than require claimant to meet
his usual burden of proof. The proponent of a claim for relief ordinarily
bears the burden of persuasion with respect to the facts essential to
prove his or her claim. Section 26-1-402, MCA, provides:

Except as otherwise provided
by law, a party has the burden of persuasion as to each fact the existence
or nonexistence of which is essential to the claim for relief or defense
he is asserting.

Since the claimant is seeking
benefits, he initially bears the burden of persuading the fact finder
that he suffers from an occupational disease. The presumption of correctness
afforded by section 39-72-610, MCA, has the same effect. Rule 301 (2),
Mont. R. Evid., provides that a presumption may be overcome or rebutted
by "a preponderance of evidence contrary to the presumption."(14)
Thus, by satisfying his initial burden of persuasion, the claimant would
have at the same time rebutted the presumption afforded the panel report.(15)

2. Petitioner's Constitutional
Claims.

Claimant argues that the decision
below must be reversed because the medical panel procedure followed in
this case violated his constitutional rights. He argues that (1) the 1995
amendment granted the presiding officer of the panel sole discretion to
make the final determination and that such authority violates his right
to substantive due process because it posits irrational, unconstrained
authority in a doctor who did not even examine him; (2) numerous aspects
of the panel procedure, including the application of the statutory presumption
favoring the panel report, violate his right to procedural due process;
and (3) the presumption of correctness afforded the medical panel report
violates his right to equal protection.

I.

Substantive Due Process

Claimant's substantive due
process argument is based on Dr. Thigpen, rather than the entire panel,
making the final panel determination. However, on appeal the claimant
has correctly urged that the panel procedure followed in this case was
erroneous under the statutes which govern the procedure. Thus, any error
that was committed was in failing to follow the statute and does not rise
to constitutional dimensions. Claimant could have challenged the panel
procedure on statutory grounds during the Department proceedings but failed
to do so. He cannot now bootstrap his failure to object on non-constitutional
grounds into a constitutional issue.

Moreover, as already said,
any error in the panel procedure was harmless.

II.

Procedural Due Process

Claimant relies on Matthew
v. Eldridge, 424 U.S. 319, 335 (1976), as supporting his procedural
due process contentions. In Matthew the United States Supreme
Court held that the following factors should be considered in determining
whether the process is sufficient.

First, the private interest
that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government's interest, including the function
involved and the fiscal and administrative burdens that the additional
or substitute procedural requisites would entail.

Id.

Claimant urges that the admission
and consideration of the medical panel report in the proceeding below
presented a grave risk of "erroneous deprivation" of his interests, thereby
rendering use of the panel report unconstitutional. He urges that the
process afforded in this case was deficient in four respects.

A.

First, he argues that the
"absolute discretion and the automatic presumption of correctness invested
in the presiding officer raises a manifest risk of erroneous, capricious
denials of benefits." (Appellant's Brief at 25.) His argument is premised
on his assertion that the 1995 procedure governing the issuance of the
final panel report was followed. He concedes, indeed he argues, that the
1993 procedure provides a "reasonable safeguard" regarding the final report.(16)

As with his substantive due
process argument, this contention is barred by his failure to object to
the medical panel procedure during the Department's proceedings. Moreover,
for the reasons previously iterated, any error is harmless. Furthermore,
the claimant had notice of the statutory presumption, was afforded an
opportunity to rebut it, and in fact mounted a vigorous evidentiary attack
on the panel report.

B.

Second, the claimant argues
that a lack of any means to update the panel report also denied him due
process. (Id. at 26.) He correctly notes that neither Dr. Thigpen
nor Dr. Sadaj ever addressed medical evidence developed after their evaluations,
especially the high-density CT scan.

Although neither Dr. Thigpen's
nor Dr. Sadaj's opinions were updated in light of the later information,
that failure did not deprive claimant of a fair hearing or a fair opportunity
to rebut their determinations. Claimant had ample opportunity to present
his own medical evidence, including evidence of the importance of the
later information, and in fact did so. He obviously understood that he
could call the medical panel doctors to cross-examine them concerning
their opinions.(17) In fact he did call
one of the panel members, Dr. Anderson. In soliciting Dr. Anderson's favorable
opinions, he provided the doctor with medical information developed subsequent
to Dr. Anderson's initial report.

Claimant's argument also fails
because any error in applying the panel presumption was harmless.

C.

Third, claimant urges that
he was misled because "[t]he statute does not clearly indicate whether
the medical panel report must be introduced into evidence by a party for
the presumption to apply." (Id.) He states that he would have
objected to the report had it been offered in evidence.

The argument is without merit.
According to the hearing officer's Findings of Fact; Conclusions of Law;
and Final Order, and the Department file, the medical panel doctors' reports
were admitted into evidence. (See Exs. B, C,
and 6 at 280-82.) Moreover, on its face, section 39-72-610(1), MCA (1993),
provides that at any hearing "there is a rebuttable presumptionthat the report of the medical panel and any medical examination
reports by members of the medical panel are correct." [Emphasis added.]
Subsection (2) of that section also states that the claimant may offer
medical information rebutting the reports. Indeed, it is astonishing that
claimant now asserts that the hearing officer's consideration of the reports
came as a surprise to him.

In Hert the Montana
Supreme Court held that findings of fact made by this Court cannot be
sustained where the only medical evidence supporting the findings consists
of physicians' letters which have neither been exchanged in accordance
with the rules of the Court nor offered into evidence. The letters in
question were part of the file of the Division of Workers' Compensation,
of which this Court had taken judicial notice. The Supreme Court noted
that the letters were hearsay, were not matters the Workers' Compensation
Court may judicially notice, and deprived claimant of an opportunity to
cross-examine the authors.

In Miller the Court
reached a different result because claimant had notice that the medical
records in question would be offered at trial and had an opportunity to
depose the authors. At the time of Miller this Court's rules
allowed, as they do now, the admission of medical records without the
necessity of foundation testimony. The records must, however, be exchanged
and offered into evidence. The rules also afford both parties the opportunity
to depose the authors of the records or subpoena them to testify at trial.

The facts of the present case
are analogous to Miller. Claimant was provided a copy of the
panel examinations and reports. He had notice that those reports and examinations
would be afforded a presumption of correctness, and would thus be admitted
at hearing. The insurer's list of proposed exhibits, provided to claimant
in advance of the hearing, listed the records of the panel members as
exhibits. (DLI File: Insurer's Witness and Exhibit List, October 5, 1995.)
Under the Department's rules the claimant could have either deposed the
authors or subpoenaed them to testify at hearing. ARM 24.29.201(12), 1.3.217(2),
24.2.101(a). His right to procedural due process was not compromised.

III.

Equal Protection

Claimant's equal protection
argument focuses once more on the statutory presumption afforded the panel
report. He notes that the WCA does not contain any similar presumption
and urges that "it is arbitrary to burden workers under one Act with adverse
presumptions and difficulties of proof which are not imposed by the other
Act." (Appellant's Brief at 27.)

Initially, claimant's contentions
must be rejected for the reason recited previously in this decision: any
error arising from an application of the presumption was harmless. Moreover,
the presumption passes muster under the Equal Protection Clauses of both
the United States Constitution and the Montana Constitution, U.S. Const.,
amend. IV, § 1; Mont. Const. art. II, § 4. The clauses of the two constitutions
protect persons against arbitrary and discriminatory state action. McKamey
v. State, 268 Mont. 137, 145, 885 P.2d 515, 521 (1994). The guarantee
of equal protection does not preclude the classification and different
treatment of persons. However, it requires that a classification have
at least some rational basis. State v. Sanders, 208 Mont. 283,
289, 676 P.2d 1312, 1315 (1984).

The rational relationship
test requires the Court to determine whether the classification at issue
is rationally related to a legitimate or proper government purpose. Cottrill,
229 Mont.at 43, 744 P.2d at 897; Eastman, 237
Mont.at 338, 777 P.2d at 865. The Court need not look further
than the medical panel provisions themselves to discern a rational basis
for those provisions. Section 39-72-601(1), MCA, requires that physicians
designated as panel members have special expertise in the diagnosis and
treatment of occupational diseases. At a minimum, a physician designated
by the Department must be board certified or board eligible in a specialty.
In addition, the expertise of a panel member who examines a claimant must
be "in the specialty area appropriate to the claimant's condition in relation
to this chapter." § 39-72-601(1), MCA (1993). The obvious purpose of these
provisions is to ensure that physicians most knowledgeable in occupational
diseases diagnose claimants and determine whether they are suffering from
occupational diseases.

Another obvious purpose of
the provisions is to provide impartial evaluations of claimants. Examining
physicians are designated by the Department. Thus, they answer to neither
the claimant nor the insurer. The presumption afforded by section 39-72-610,
MCA, may be seen as a measure of the legislature's confidence in the panel
members' ability to render objective, unbiased opinions.

The fact that the legislature
has not enacted similar procedures for workers' compensation claims does
not render the occupational disease provisions unconstitutional. Eastman,
237 Mont. at 339, 777 P.2d at 866. There are obvious differences
between occupational injuries and occupational diseases. A cause and effect
relationship between work and an injury is typically and immediately evident:
the relationship between a disease and work may not be so evident. Disease
may be caused by pathological agents which may have been contracted either
on or off the job. An occupational disease specialist may be required
to trace the source of the pathogen. The disease may arise over time,
raising questions concerning its origin. In some cases, such as the present
one, even the diagnosis of the disease may require special expertise.

The apparent purposes of the
medical panel provisions are unassailably legitimate ones. The provisions
themselves are rationally related to those purposes. Thus, they do not
deny claimant his right to equal protection of the laws.

3. The Hearing Officer's Findings
of Fact.

Finally, the claimant attacks
the hearing officer's findings of fact. He argues that in making his ultimate
findings the hearing officer improperly relied on the presumption of correctness
afforded the panel report. He further argues that the findings are clearly
erroneous.

I.

Application of the Presumption

Claimant argues that the hearing
officer erred in affording the panel report the presumption of correctness
because Drs. Thigpen and Sadaj failed to use the proper causation standard
and did not consider subsequent medical evidence. He also argues that
the panel report was directly rebutted by other evidence.

However, the presumption was
not the sole basis for the hearing officer's decision. Other credible
medical testimony was presented to counter the medical testimony supporting
claimant's occupational disease allegation. In determining whether the
claimant rebutted the presumption, the hearing officer properly considered
all of the evidence and affirmatively indicated that he was more persuaded
by the evidence indicating that claimant does not suffer from an occupational
disease.

Moreover, as discussed earlier,
the presumption did nothing more than require claimant to persuade the
hearing officer, by a preponderance of the evidence, that he suffers from
an occupational disease. That basic burden of proof existed without the
presumption. Thus, on appeal the claimant must show that the hearing officer's
determination that claimant failed to satisfy his burden was clearly erroneous.

II.

The Clearly Erroneous Argument

Claimant argues that to prevail
in his occupational disease claim he must prove only that he suffers from
an occupational disease that aggravates, or is aggravated by, a non-occupational
condition. The Court agrees. The criteria for proving causation in occupational
disease cases are specifically spelled out in section 39-72-408, MCA,
which provides :

Proximate causation.
Occupational diseases shall be deemed to arise out of the employment
only if:

(1) there is a direct causal
connection between the conditions under which the work is performed
and the occupational disease;

(2) the disease can be seen
to have followed as a natural incident of the work as a result of the
exposure occasioned by the nature of the employment;

(3) the disease can be fairly
traced to the employment as the proximate cause;

(4) the disease does not
come from a hazard to which workmen would have been equally exposed
outside of the employment;

(5) the disease is incidental
to the character of the business and not independent of the relation
of employer and employee.

The section must be read together
with section 39-72-706, MCA, which provides for apportionment between
occupational and non-occupational causes.(18)
Thus, occupational aggravations of preexisting non-occupational diseases
are compensable, as are occupational diseases which are aggravated by
non-occupational factors.

The claimant urges that he
met his burden of proof and that the hearing officer's conclusion to the
contrary was clearly erroneous, § 39-72-612(2)(e), MCA. Under the clearly
erroneous standard of review, this Court must apply the three-part test
set forth in the case of In re Marriage of Griffin, 275 Mont.
37, 44, 909 P.2d 707, 711 (1996), wherein the Supreme Court said:

We have adopted a three-part
test to determine whether findings are clearly erroneous. Interstate
Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d
1285, 1287. The test provides that: (1) the Court will determine whether
the findings are supported by substantial evidence; (2) if the findings
are supported by substantial evidence, the Court will determine if the
district court has misapprehended the evidence; and (3) if the findings
are supported by substantial evidence and that evidence has not been
misapprehended, this Court may still find that a finding is "clearly
erroneous when, although there is evidence to support it, a review of
the record leaves the court with the definite and firm conviction that
a mistake has been committed." DeSaye, 820 P.2d at 1287 (citing
United States v. United States Gypsum Co. (1948), 333 U.S.
364, 68 S.Ct. 525, 92 L.Ed. 746).

Applying the three-part test,
I find that the hearing officer's findings were not clearly erroneous.
The medical evidence in this case was conflicting. The diagnoses made
by the various physicians were conflicting. The opinions concerning the
causation of claimant's basic symptom -- shortness of breath due to hypoxia
-- were conflicting. Certainly, there was sufficient evidence to support
a finding in claimant's favor. But two highly competent physicians with
special expertise, training, and knowledge -- Drs. Merchant and Demeter
-- testified in rebuttal of that evidence and opined that non-occupational
factors were responsible for his disease. Their opinions were supported
by reports from other non-testifying doctors who had examined claimant
or evaluated radiologic imaging and biopsies.

Hypersensitivity pneumonitis
was the potential lung disease most probably related to claimant's occupational
exposure. In rendering her opinion that claimant suffers from that disease,
Dr. Headapohl relied on Dr. Kessler's interpretation of a high-density
CT scan of claimant's lungs. Dr. Kessler, a radiologist, saw evidence
of interstitial markings suggesting interstitial scarring or fibrosis
which he characterized as consistent with mild interstitial lung disease
and "suspicious for hypersensitivity pneumonitis." (Tr. at 90-91, 97-98.)
Dr. Merchant, however, disagreed with Dr. Kessler's interpretation of
the CT scan. After personally reviewing the actual scan, Dr. Merchant
testified that there was no significant interstitial changes which would
be consistent with hypersensitivity pneumonitis. (Merchant Dep. at 34.)
Dr. Merchant further testified that he had special expertise in reading
high-resolution CT scans of the lung, "probably have had more experience
looking at high-resolution CAT scans than any radiologist in the state,
especially with respect to interstitial lung disease." (Id. at
57.) He noted that he had been part of a research program involving high-resolution
CT scans. Dr. Merchant's claim of greater expertise in reading and interpreting
high-resolution CT scans was unrebutted. If the hearing officer believed
his testimony, which he apparently did,(19)
part of the foundation for Dr. Headapohl's, as well as Dr. Anderson's
and Dr. Kessler's, opinions concerning hypersensitivity were discredited.
Both Drs. Merchant and Demeter provided strong testimony undermining claimant's
assertion that he suffers from occupationally related hypersensitivity
pneumonitis and supporting a finding that claimant's lung disease is due
to non-occupational factors, especially smoking.

Claimant further argues that
the hearing officer erred in assessing five factual matters underlying
the occupational disease determination. (Appellant's Brief at 16-21.)
In assessing his contentions, this Court may not re-weigh the evidence
presented at hearing, Kelly v. State Compensation Ins. Fund/Belt Public
Schools, 254 Mont. 200, 203, 835 P.2d 774, 776 (1992), or look for
evidence which might support a finding contrary to that of the hearing
officer, Nelson v. Semitool, Inc., 252 Mont. 286, 289, 829 P.2d
1, 3 (1992). Rather, the function of this Court is to determine whether
there is substantial evidence in the record to support the hearing officer's
findings. Id. After considering claimant's arguments, I find
that his arguments are more appropriately addressed to the fact finder.
I am not persuaded that the hearing officer misapprehended the evidence
or left with a firm conviction that a mistake was committed. Marriage
of Griffin, 275 Mont. 37, 44, 909 P.2d at 711.

Claimant initially argues
that the hearing officer erred in finding that the doctors who supported
the panel report are more highly qualified than the physicians supporting
claimant's contentions. (Appellant's Brief at 16.) He contends that Drs.
Anderson and Strong have personal experience in grain-related pulmonary
disorders and that Dr. Demeter does not. However, Dr. Demeter testified
that he had treated patients with hypersensitivity pneumonitis. (Tr. at
124, 131.) Although he may not have discussed his specific experience
in treating grain-related pulmonary disorders, Dr. Demeter is board certified
in both pulmonary and occupational medicine, is the chief of occupational
medicine at a medical center, has authored and co-authored a multitude
of medical articles, has edited a textbook entitled Environmental
Respiratory Disease, and reviewed medical literature concerning hypersensitivity
pneumonitis. Dr. Merchant, who agreed that claimant does not have an occupational
disease, has experience in treating interstitial lung disease and special
expertise in reading high-resolution CT scans which can disclose the disease.
Dr. Merchant is also board certified in pulmonary medicine; Drs. Strong,
Anderson and Headapohl are not. While all of the doctors supporting claimant
are well qualified and have impressive academic backgrounds and experience,
it would be difficult not to say that Dr. Demeter's and
Merchant's overall background and experience, and their familiarity with
hypersensitivity pneumonitis, surpass that of the other physicians.

Claimant argues that the hearing
officer was required to accept Dr. Kessler's reading of the high-resolution
CT scan, and specifically his findings of interstitial scarring and fibrosis
"suspicious for hypersensitivity pneumonitis." (Appellant's Brief at 17.)
However, his argument disregards Dr. Merchant's testimony that he saw
"no significant interstitial changes" which would be consistent with hypersensitivity
pneumonitis, as well as Dr. Merchant's unrebutted testimony that he has
more experience and expertise in interpreting high-resolution CT scans
of the lungs than any radiologist practicing in Montana. (Merchant Dep.
at 56-57.) Dr. Merchant's opinion was supported by Dr. Demeter, who found
no evidence of interstitial changes on the CT scans or on any of the x-rays.
(Tr. at 119.)

Claimant argues that the findings
fail to account for claimant's weight loss during his 1992 illness. He
contends his weight loss was symptomatic of hypersensitivity pneumonitis.
However, Dr. Demeter was cross-examined on this point. (Tr. at 143.) He
pointed out that many of claimant's symptoms in 1992 and 1993 were consistent
with many other possible conditions. He testified that overall the claimant's
medical history was inconsistent with the typical history of either acute
or chronic hypersensitivity pneumonitis. (Id. at 142, 150.)

Claimant argues that the "course"
of his illness proves he suffers from hypersensitivity pneumonitis. (appellant's
brief at 19.) Again, there was conflicting evidence. Dr. Demeter certainly
did not agree with his contention.

Finally, claimant argues that
the hearing officer erred in failing to find that he suffers from occupational
asthma. (Id at 19-20.) Dr. Demeter, however, testified that claimant
does not suffer from occupational asthma. (Tr. at 123-24, 131-32.)Dr. Merchant also did not diagnose occupational asthma.

Neither Dr. Merchant nor Dr.
Demeter found any link between claimant's respiratory conditions and occupational
factors. Dr. Merchant stated that while claimant was working "he could
have had some problems," but said "currently I don't think there is any
ongoing problems that I can identify that would have resulted from his
occupational exposure." (Merchant Dep. at 37.) Similarly, Dr. Demeter
testified, "I find no evidence at the present time to believe that this
individual [claimant] has any occupationally induced lung diseases." (Tr.
132.)

After considering claimant's
arguments, I find that the hearing officer's finding that claimant does
not suffer from an occupational disease is not clearly erroneous and that
it is supported by substantial evidence.

Claimant also challenges the
hearing officer's finding that he is not totally disabled. (appellant's
brief at 20.) Because the hearing officer's finding that the claimant
does not suffer from an occupational disease is affirmed, I need not address
the contention.

ORDER AND JUDGMENT

1. This Court has jurisdiction
over this matter pursuant to section 39-71-2905, MCA.

2. The Department's March 1,
1996, Findings of Fact; Conclusions of Law; and Final Order are affirmed.

3. Petitioner is not entitled
to attorney fees and costs.

4. This JUDGMENT is certified
as final for purposes of appeal pursuant to ARM 24.5.348.

5. Any party to this dispute
may have 20 days in which to request an amendment or reconsideration of
this Order and Judgment.

1. A number
of documents relating to the claim and the medical panel procedure are
not marked as hearing exhibits but are part of the Department's file in
this matter. Documents in the file will be cited as "DLI File."

3. The hearing
below was recorded on audio tape and the transcriptionist was unable to
discern the name of the syndrome. (Tr. at 75.) There are numerous other
places in the transcript where the transcriptionist was unable to discern
the words used by witnesses and counsel.

5. "Pulmonary
medicine" involves the study and treatment of diseases of the chest, primarily
the lungs. (Tr. at 43.)

6. A bronchodilator
is a drug that dilates or expands the bronchi and bronchioles. See Dorland's
Illustrated Medical Dictionary 237 (27th ed. 1988).

7. As noted
earlier at page 8, Dr. Anderson testified that one possible cause of bronchiectasis
is aspergillosis due to aspergillus fungus found in grain. (Tr. at 58,
60-61.) However, the doctor was unable to say on a more probable than
not basis that claimant's bronchiectasis was caused by the fungus. (Id.)

8. His curriculum
vitae indicates that in 1977 he became eligible for board certification
in internal medicine.

10. Apparently
Dr. Demeter identified the depositions but his list is recorded as "inaudible"
in the transcript.

11. These
were Material Safety Data Sheets. These sheets were also supplied
to Dr. Headapohl, who testified that they are customarily used in evaluating
occupational exposures. (Tr. at 11, 28-29.)

12. Thus,
had claimant suffered acute episodes of hypersensitivity pneumonitis in
1992 and 1993, as suggested by Dr. Headapohl, there was an 80 to 90% probability
that the blood panel administered by Dr. Sadaj would have been positive.

13. Eosinophils
are a type of white blood cells within the polymorphonuclear leukocytes
group. (Tr. at 129-30.) Elevated levels may indicate an allergic response
to an antigen. (Id. at 129.)

(a)Presumption
defined. A presumption is an assumption of fact that the law
requires to be made from another fact or group of facts found or otherwise
established in the action or proceeding.

(b)Classification
and Effect of Presumptions.

(1) Conclusive presumptions
are presumptions that are specifically declared conclusive by statute.
Conclusive presumptions may not be controverted.

(2) All presumptions, other
than conclusive presumptions, are disputable presumptions and may be
controverted. A disputable presumption may be overcome by a preponderance
of evidence contrary to the presumption. Unless the presumption is overcome,
the trier of fact must find the assumed fact in accordance with the
presumption.

15. On
the other hand, a claimant may benefit from the presumption since a panel
report favorable to the claimant shifts the burden of persuasion to the
insurer to disprove an occupational disease.

This risk [of erroneous
deprivation], moreover, obviously can be reduced by employing fairly
modest procedural safeguards. The former procedure (involving exchange
of reports and deliberation among all three of the members of the panel)
was a reasonable safeguard. Under that procedure, arbitrary conduct
was far less likely than under the present formless procedure.

(Appellant's Brief at 26.)

17. Rule
13 of the Attorney General's Model Rules, which have been adopted by the
Department, ARM 24.29.201(2), permits discovery in accordance with Rules
26, 28 through 37 (except 37(b)(1) and 37(b)(2)(d)) of the Montana Rules
of Evidence. 1.3.217(2), ARM. Rule 30, Mont. R. Civ. P. permits depositions.
Furthermore, claimant could have subpoenaed the doctors to testify at
hearing pursuant to ARM 24.2.101(a).

39-72-706. Aggravation.
(1) If an occupational disease is aggravated by any other disease
or infirmity not itself compensable or if disability or death from any
other cause not itself compensable is aggravated, prolonged, accelerated,
or in any way contributed to by an occupational disease, the compensation
payable under this chapter must be reduced and limited to such proportion
only of the compensation that would be payable if the occupational disease
were the sole cause of the disability or death as such occupational
disease as a causative factor bears to all the causes of such disability
or death.

19. While
the hearing officer made no specific finding concerning the conflict in
testimony concerning the CT scan, and indeed made no findings concerning
other specific conflicts in testimony, he did find that the physicians
who concluded that claimant does not suffer from an occupational disease
were, as a group, more qualified and more persuasive than the physicians
who supported claimant's occupational disease allegation. Conclusion of
Law 5. (Conclusion of law 5 sets forth a factual determination and would
have more appropriately been set out as a finding of fact.) Dr. Merchant
was among the group the hearing officer characterized as more qualified
and persuasive.